Immigration Crisis – Page 266 – immigrationcourtside.com

REUTERS: Some Good News For The U.S. Immigration Courts: AG Sessions Exempts Immigration Courts From Hiring Freeze!

http://www.reuters.com/article/us-usa-immigration-judges-idUSKBN16A2NI

Mica Rosenberg and Kristina Cooke report:

“President Donald Trump’s federal hiring freeze will not apply to immigration court judges under an exception for positions that are needed for national security and public safety, the Executive Office for Immigration Review told Reuters on Friday.

The Trump administration has called for faster removal of immigrants in the United States illegally, but immigration courts, which rule on asylum applications and deportation appeals, are weighed down by a record backlog of more than 542,000 cases.

On Jan. 23, Trump froze hiring for all federal government positions, except for military personnel and in some other limited circumstances.

New Attorney General Jeff Sessions “determined that Executive Office for Immigration Review (EOIR) positions can continue to be filled,” EOIR spokeswoman Kathryn Mattingly told Reuters in an email response to questions about the freeze.

“As such, EOIR is continuing to advertise and fill positions nationwide for immigration judges and supporting staff,” Mattingly said. The immigration courts are run by the Justice Department, unlike federal courts which are independent.”

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As noted in the article, there are approximately 50 individuals already in the judicial hiring process. It isn’t clear if these individuals will be appointed or whether the Administration will choose instead to start the process over again. As noted in the article, the process, as currently designed and administered, is lengthy, often taking a year or more. Interestingly, that’s probably as long or longer than it takes to get an average Article III judicial appointee through the Senate confirmation process.

PWS

03/04/17

REUTERS EXCLUSIVE: Will Administration’s Next “Border Deterrence” Plan Be To Separate Women & Their Children — Rep. Henry Ceullar (D-TX) Takes A Stand Against Violating Human Rights!

http://www.reuters.com/article/us-usa-immigration-children-idUSKBN16A2ES?utm_source=applenews

Julia Edwards Ainsley reports:

“Women and children crossing together illegally into the United States could be separated by U.S. authorities under a proposal being considered by the Department of Homeland Security, according to three government officials.

Part of the reason for the proposal is to deter mothers from migrating to the United States with their children, said the officials, who have been briefed on the proposal.

The policy shift would allow the government to keep parents in custody while they contest deportation or wait for asylum hearings. Children would be put into protective custody with the Department of Health and Human Services, in the “least restrictive setting” until they can be taken into the care of a U.S. relative or state-sponsored guardian.

Currently, families contesting deportation or applying for asylum are generally released from detention quickly and allowed to remain in the United States until their cases are resolved. A federal appeals court ruling bars prolonged child detention.

President Donald Trump has called for ending “catch and release,” in which migrants who cross illegally are freed to live in the United States while awaiting legal proceedings.

Two of the officials were briefed on the proposal at a Feb. 2 town hall for asylum officers by U.S. Citizenship and Immigration Services asylum chief John Lafferty.

A third DHS official said the department is actively considering separating women from their children but has not made a decision.

HHS and the White House did not respond to requests for comment.”

. . . .

U.S. Representative Henry Cuellar, a Texas Democrat whose district includes about 200 miles (320 km) of the border with Mexico, slammed the proposal. “Bottom line: separating mothers and children is wrong,” he said in a statement.

“That type of thing is where we depart from border security and get into violating human rights,” he said.”

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I agree with Rep. Cuellar. “Refugee deterrence plans” used by past Administrations of both parties involving mass detention and schemes to make things difficult for families have failed and will continue to do so. Desperate people, fleeing for their lives, will do desperate things, including putting up with detention and other inhumane treatment by the U.S.

Undoubtedly, as in the past, some individuals will be pressured by detention and family separation into giving up claims and accepting return. But, overall, most who face the real possibility of death, torture, extortion, and other abuse upon return will “wait the system out” hoping, even when the the evidence might suggest otherwise, that the U.S. will eventually live up to its ideals of fairness, due process and compliance with laws on protection.

Let’s remember that we are talking about scared refugees seeking to exercise their rights under U.S. law, the Geneva Convention on Refugees, and the Convention Against Torture, to apply for protection at the border or in the U.S., and to have those claims fairly and impartially determined.

Rep. Cuellar is someone who has taken the time to understand the problems of children and families in the U.S. Immigration Court system. I know he visited the Arlington Immigration Court on one or more occasions to observe “priority” juvenile hearings. Partially as a result, he became one of the leaders of the successful bipartisan effort to provide additional funding and judicial positions for the Immigration Court. Remarkably, the bulk of those additional positions remained unfilled or “in the pipeline” at the conclusion of the Obama Administration.

Thanks to Nolan Rappaport for sending this in.

PWS

03/04/04

IMMIGRATION IMPACT: Katie Shepard Explains How New USCIS Lesson Plans Are Likely To Harm Asylum Seekers!

http://immigrationimpact.com/2017/02/28/changes-may-keep-asylum-seekers-getting-day-court/

“Effective February 27, 2017, new changes to the asylum screening process could lead to an increased number of deportations of asylum-seekers who fear persecution upon return to their home country.

On February 13, 2017, U.S. Citizenship and Immigration Services (USCIS) revised its Asylum Division Officer Training Course (ADOTC) lesson plans on how to assess an asylum seeker’s credible and reasonable fear of persecution or torture. The lesson plans were revised to be consistent with the January 25, 2017 Executive Order on border security and immigration enforcement and provide guidelines to the asylum officers when conducting credible fear interviews (for those at the border or port of entry who were never previously deported) and reasonable fear interviews (for those who were previously order deported but who later seek asylum).

The changes to the lesson plans are significant and may cause the denial rate to skyrocket, in which case thousands of asylum seekers would be wrongfully denied a meaningful day in court . Not only does the new guidance provide asylum officers with greater discretion to deny an applicant for reasons which may be out of the applicant’s control, but the applicant will essentially be forced to undergo a full asylum hearing with none of the safeguards in place to ensure a meaningful opportunity to present a claim for relief.”

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Read Katie’s complete analysis at the link. You should also look at Dree Collopy’s short video on the changes which I previously posted.

http://wp.me/p8eeJm-qx

If this carries over into Immigration Court where unsuccessful applicants can seek “expedited review,” it would mean that “credible fear reviews” could become more time consuming.

I was usually able to complete them in a few minutes using the Asylum Officer’s notes and asking a few questions. I found that the overwhelming number of those denied had “credible fear,” and probably at least half of those cases eventually resulted in relief. However, over the last year of my career I was primarily on the non-detained docket, so I only did “credible fears” when I was on detail to a detention center or the system was backed up.

As an Immigration Judge, I did not use the USCIS lesson plans. But, I did rely on the Asylum Officer’s notes for a basic understanding of the claim. I then usually asked a few questions to verify that the notes accurately reflected the claim and that nothing relevant had been omitted.

PWS

03/03/17

AILA TV: In Less Than 5 Minutes, Superstar Attorney Dree Collopy Tells You Everything You Need To Know About The Revised USCIS Guidance On Credible/Reasonable Fear — Must Watch TV!

Here’s the You-Tube link.

https://www.youtube.com/watch?v=CgVJkysse2Y

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Great job by Dree!

Bottom Line: Under pressure from the Trump Administration, USCIS is tilting the system against (largely unrepresented) asylum applicants from the Northern Triangle. The only questions are 1) whether the Immigration Courts will follow suit, and 2) if so, whether the Article III Courts will blow or swallow (as they have done so far in the credible/reasonable fear context) the whistle on due process for the most vulnerable.

A good introduction to reality for anyone who believes that conscientious career civil servants will be able to persevere in the face of the Trump Administration’s all-out assault on due process and fundamental fairness.

WALTER PINCUS IN THE NEW YORK REVIEW OF BOOKS: The Coming Immigration Court Disaster!

http://www.nybooks.com/daily/2017/03/01/trump-us-immigration-waiting-for-chaos/?utm_medium=email&utm_campaign=NYR Dennett immigration reform Chopin&utm_content=NYR Dennett immigration reform Chopin+CID_c0a3091a06cff6ddbb541b093215f280&utm_source=Newsletter&utm_term=US Immigration Waiting for Chaos

“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.

The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.

But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?

. . . .

For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.

Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”

The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.

The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?

As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.

Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.

Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”

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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”

As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.

Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.

In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.

Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”

No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.

PWS

03/02/17

Raul Reyes On CNN: Trump’s “Softening” On Immigration A “Cruel Hoax” — “The Most Anti-Immigrant President In Modern History”

http://www.cnn.com/2017/03/01/opinions/trump-bait-and-switch-on-immigration-reyes/index.html

“Then came Trump’s address before Congress, and his true intentions were revealed. His talk of immigration reform, we now know, was just that: Talk. At best, his earlier statements about immigration reform were a publicity stunt designed to gin up interest (and ratings, which Trump is obsessed with) in his speech. At worst, this bait-and-switch was a cruel hoax perpetrated on millions of undocumented people who might have briefly hoped for a reprieve from possible deportation.
In fact, Trump’s speech offered little meaningful policy on immigration, beyond conflating immigrants with crime and misrepresenting key facts underlying illegal immigration. Tellingly, there was no mention of offering legalization to anyone.

. . . .

Yes, such reform is possible, but it is unlikely Trump will expend any political capital making it happen. He was elected by a base that is fervently opposed to anything resembling “amnesty.” He has surrounded himself with advisers like white nationalist champion Steve Bannon, the xenophobic Stephen Miller, and Attorney General Jeff Sessions, who wants curbs on legal immigration.”

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PWS

03/02/17

Despite Softer Tone, Not Everyone “Sold” On Trump’s Vision, Particularly As It Relates to Immigration!

http://www.huffingtonpost.com/entry/donald-trump-policies-joint-session_us_58b6e282e4b0780bac2f010b?

Igor Bobic , Amanda Terkel , Kate Sheppard write in HuffPost:

“Yet many key assertions Trump made were patently false. America is neither crime-infested nor still mired in a recession, as he portrayed. Moreover, some of his bold rhetoric on issues like the environment, immigration, civil rights, women’s rights and child care are directly undercut by the policies he has pursued or promised to pursue since taking office on Jan. 20.

Immigration Reform
Trump welcomed the idea of compromise on immigration reform, calling on Democrats and Republicans to “work together to achieve an outcome that has eluded our country for decades.” Prior to the speech, he even told reporters that he wanted a bill that could grant legal status to millions of undocumented immigrants living in the U.S.

Despite his call for compromise, however, Trump has directed his administration to enforce the nation’s immigration laws more aggressively. The policy, which he dubbed a “military operation,” has given immigration officials the freedom to target not only serious criminals, as Trump has promised, but also undocumented immigrants with misdemeanors and some with no criminal history at all. And he still has plans to build a “great” wall on the U.S.-Mexico border, which Democrats and even some Republicans in Congress strongly oppose.

“At one point, he mentioned that he was targeting and criminalizing immigrants, but at the same time, he’s saying we need to unite?” asked Roque Pech, a beneficiary of former President Barack Obama’s Deferred Action for Childhood Arrivals program, which grants temporary deportation relief to certain young undocumented immigrants who came to the U.S. as children.

Pech, who attended the event as a guest of Rep. Nanette Barragan (D-Calif.), said Trump’s immigration talk made no sense: “I felt like multiple times he was contradicting himself. That was one of the clearer examples.”

Matthew Cooper, writing in Newsweek, was also blunt in his assessment:

“Yet no one listening to the nearly hour-long address would think Trump had mellowed his nationalist agenda. His decision to create an office at the Justice Department focused on crime caused by illegal immigrants elicited groans from Democrats in the chamber. Just as President Barack Obama once held up DREAMers—immigrants who arrived illegally as children and went on to lead productive lives—Trump pointed to families gathered in the House of Representatives who had lost family members to crimes perpetrated by undocumented immigrants. Trump showed no signs of softening his stance on immigration, save for not invoking his usual promise to have Mexico pay for the wall. If anything he went further, by suggesting that the current immigration system should be overhauled and based on “merit,” however that’s defined. Despite news reports earlier on Tuesday that he might be open to some kind of immigration reform allowing 11 million undocumented migrants to stay in the U.S., there was no indication of that kind of softening in his address. Instead he invoked the frightening image of immigrants driving down wages and raising havoc. “Lawless chaos,” he called it. The solution, he said: “We must restore integrity and the rule of law to our borders.” By applauding Jamiel Shaw, the African-American man whose son was killed by an undocumented immigrant, Trump made his case for getting tough on the border and did so in a way that would help insulate him against charges of racism.”

http://www.newsweek.com/trump-congress-speech-immigration-paul-ryan-obamacare-trade-crime-562365

And, according to the Washington Post’s “Fact Checkers,” Glenn Kessler and Michelle Ye Hee Lee, striking a more “Presidential tone,” Trump continues to pile up erroneous statements at an impressive rate:

“An address to Congress is such an important speech that presidents generally are careful not to stretch the truth. The “16 words” in George W. Bush’s 2003 State of the Union address that falsely claimed Iraq’s Saddam Hussein sought uranium from Africa led to significant turmoil in the administration, including the criminal conviction of a top aide.

President Trump’s maiden address to Congress was notable because it was filled with numerous inaccuracies. In fact, many of the president’s false claims are old favorites that he trots out on a regular, almost daily basis. Here’s a roundup of 13 of the more notable claims, in the order in which the president made them.

. . . .

“We’ve defended the borders of other nations, while leaving our own borders wide open, for anyone to cross — and for drugs to pour in at a now unprecedented rate.”

The data are mixed on the amount of drugs coming through the borders. The amount of marijuana seized at the border continues to decline — probably a reflection of drug use in the United States, as more states legalize marijuana for medical or recreational use. In fiscal 2016, 1.3 million pounds of marijuana were seized, down from 1.5 million the year before, and lower than the peak of nearly 4 million pounds in 2009, according to Customs and Border Protection data. The amount of cocaine seized at the borders overall in fiscal 2016 (5,473 pounds) was roughly half the amount seized the previous year (11,220 pounds).

But the amount of heroin and methamphetamine seized has increased in recent years. In fiscal year 2016, CBP seized 9,062 pounds of heroin (compared to 8,282 in fiscal 2015) and 8,224 pounds of methamphetamine (compared to 6,443 pounds in fiscal 2015).

Meanwhile, illegal immigration flows across the Southern border in fiscal 2015 were at the lowest levels since 1972, except for in 2011. The apprehensions in fiscal 2016 (408,870) exceeded fiscal 2015 (331,333), but still indicate an overall decline since their peak in 2000 (1.6 million).

. . . .

“As we speak, we are removing gang members, drug dealers and criminals that threaten our communities and prey on our citizens. Bad ones are going out as I speak and as I have promised throughout the campaign.”

Trump is referring to the recent arrests of undocumented immigrants convicted of crimes, or the “bad ones.” Trump takes credit for fulfilling his campaign promise of cracking down on illegal immigration, but these arrests are routine. Immigration and Customs Enforcement has always targeted dangerous criminals in enforcement priorities. The recent arrests, however, did include people who would not have fallen under narrowed enforcement priorities under Obama.

Still, 25 percent of the arrests that grabbed headlines in early February were of people who had lesser charges and noncriminal convictions. According to anecdotes of recent arrests, undocumented people with traffic violations were subject to arrest. They are not the “bad ones,” such as drug dealers or gang members, that he describes.

“By finally enforcing our immigration laws we will raise wages, help the unemployed, save billions and billions of dollars and make our communities safer for everyone.”

Trump exaggerates the impact of illegal immigration on crime, taxpayer money and jobs.

Extensive research shows noncitizens are not more prone to criminality than U.S.-born citizens. The vast majority of unauthorized immigrants are not criminal aliens or aggravated felons.

Trump appears to reference the cost of illegal immigration from the Federation for American Immigration Reform, which supports lower levels of legal and illegal immigration. According to the group, the annual cost of illegal immigration at the federal, state and local levels amounted to about $113 billion as of 2013.
The scene as President Trump delivers his first address to a joint session of Congress
View Photos The president returned to familiar themes from his campaign in his speech to Congress, promising to reduce regulations and taxes, combat terrorism, crack down on illegal immigration and replace the Affordable Care Act.
But this calculation makes assumptions that are not necessarily tied to illegal immigration, like enrollment in English proficiency classes. The enrollment number doesn’t tell you anything about the actual citizenship status of students (i.e., they could be native-born children of undocumented immigrants, raised in a non-English-speaking home).
In general, economists have found that immigration overall results in a net positive to the U.S. economy. There are slight negative effects, which are felt most strongly by less-educated and low-skilled workers. Illegal immigration, in particular, tends to affect less-educated and low-skilled American workers the most — groups disproportionately consisting of black men and recently arrived less-educated legal immigrants.

The U.S. Commission on Civil Rights 2010 report found that illegal immigration has tended to depress wages and employment particularly for black men. But factors other than illegal immigration contribute to black unemployment, the report found, including the high school dropout rate and low job-retention rates.

. . . .

“Jamiel’s 17-year-old son was viciously murdered by an illegal immigrant gang member, who had just been released from prison. Jamiel Shaw Jr. was an incredible young man, with unlimited potential who was getting ready to go to college where he would have excelled as a great quarterback. But he never got the chance. His father, who is in the audience tonight, has become a good friend of mine.”

Trump likes to use anecdotes as evidence for associating violent crimes with illegal immigration, telling stories of victims of homicide by undocumented immigrants. He brought family members of those killed by illegal immigrants as his guests for Tuesday night’s speech. He often talks about the death of Jamiel Shaw Jr., a 17-year-old football star who was killed in 2008 by a gang member who was in the country illegally.

Clearly, stories like this exist. But the vast majority of unauthorized immigrants do not fit Trump’s description of aggravated felons, whose crimes include murder. U.S. Sentencing Commission data show homicides are a small percentage of the crimes committed by noncitizens, whether they are in the United States illegally or not.

The Congressional Research Service found that the vast majority of unauthorized immigrants do not fit in the category of aggravated felons, whose crimes include murder, drug trafficking or illegal trafficking of firearms.”

https://www.washingtonpost.com/news/fact-checker/wp/2017/02/28/fact-checking-president-trumps-address-to-congress/?utm_term=.dc2c2a6b69c0&wpisrc=nl_daily202&wpmm=1

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PWS

03/02/17

New Administration “Travel Ban” Likely On Wednesday — Revisions Will Address Some Issues That Troubled Courts

https://www.washingtonpost.com/world/national-security/new-travel-ban-will-exempt-current-visa-holders/2017/02/28/42ac1f3a-fe03-11e6-99b4-9e613afeb09f_story.html?hpid=hp_rhp-top-table-main_trumpban-0608pm%3Ahomepage%2Fstory&utm_term=.33edc3e29145

Matt Zapotosky reports in the Washington Post:

“Barring any last minute changes, President Trump will sign a revised travel ban that exempts current visa holders, according to a person familiar with the matter.

The revision marks a significant departure from the now-frozen first executive order, which temporarily barred refugees and citizens of seven Muslim-majority countries from entering the United States, and resulted in the State Department unilaterally revoking tens of thousands of visas. Justice Department lawyers hope the new order will be more likely to withstand legal challenges and will not leave any travelers detained at U.S. airports.

The new order also removes an exception to the refugee prohibition for religion minorities, the person said. Critics of the order had said that exception proved it was meant to discriminate on the basis of religion, because it allowed only Christians into the country.
The new order, the details of which were first reported by the Wall Street Journal, is expected to be signed Wednesday. The person who described it to The Post did so on the condition of anonymity because the administration had not authorized the release of details.”

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I would expect advocates to quickly challenge the new order. If the Administration backs up the order with some evidence supporting its actions, the legal challenges might be more difficult this time around.

PWS

02/28/17

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UPDATE: NBC News reports Wednesday morning that the White House now says that the new Travel Ban Order will be further delayed.

PWS

03/01/17

Shocker — Is Trump’s Immigration Policy About To Take a More Pragmatic Turn? — Proposal For Reform Legislation Allowing Many To Stay In The Offing?

https://www.nytimes.com/2017/02/28/us/politics/trump-address-congress.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news

JULIE HIRSCHFELD DAVIS, MICHAEL D. SHEAR and PETER BAKER report in the NY Times:

“WASHINGTON — President Trump, signaling a potential major shift in policy, told news anchors on Tuesday that he is open to a broad immigration overhaul that would grant legal status to millions of undocumented immigrants who have not committed serious crimes.

“The time is right for an immigration bill as long as there is compromise on both sides,” the president told the TV anchors at the White House, according to people present during the discussion. The people requested anonymity because they were not authorized to speak about the private meeting.

The idea is a sharp break from the broad crackdown on undocumented immigrants that Mr. Trump has taken in his first weeks in office and the hardline positions embraced by his core supporters that helped sweep him into the White House. The president hinted at the reversal just hours before he was to deliver his first address to Congress, although it was not clear whether he would mention it in his speech.
A move toward a comprehensive immigration overhaul would be a dramatic turnaround for the president, whose campaign rallies rang with shouts of “build the wall!” on the Mexican border and who signed an executive order last month directing the deportation of any undocumented immigrant who has committed a crime — whether or not they have been charged — or falsified any document. The standard could apply to virtually any one of the estimated 11 million people in the country illegally.”

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This report was published before the President’s speech to Congress tonight. We might, or might not, get more details in the speech.

Reaching a compromise on immigration would be “smart governing” by the Administration. It would push most of the responsibility for formulating sound immigration policy back where it belongs — Congress. Additionally, reform that allows those undocumented individuals with good records to remain in the United States could potentially clear much of the backlog of the overwhelmed U.S. Immigration Courts, thereby clearing the way for the Administration to work on its “criminal priorities” and for the Immigration Courts to concentrate on providing full due process to those placed in the removal process.

PWS

02/28/17

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Update from the Washington Post:

“He also pressed his policies on immigration, including his controversial proposal to build a wall along the U.S.-Mexico border.

“We want all Americans to succeed —- but that can’t happen in an environment of lawless chaos. We must restore integrity and the rule of law at our borders,” said Trump. “For that reason, we will soon begin the construction of a great wall along our southern border. It will be started ahead of schedule and, when finished, it will be a very effective weapon against drugs and crime.”

Trump challenged members of Congress who disagree with him: “I would ask you this question: what would you say to the American family that loses their jobs, their income, or a loved one, because America refused to uphold its laws and defend its borders?”

He did call for Republicans and Democrats to work toward reforming the immigration system into a merit-based program focused on the “well-being of American citizens.”

Trump argued that the country’s current focus on low-skilled immigration hurts American workers and strains the country’s finances.

The comments come hours after Trump said in a meeting with journalists that he would support comprehensive immigration reform efforts with a pathway to legalization for law abiding immigrants.
At his remarks before Congress, Trump did not specify the parameters of a compromise he would be willing to accept. But he outlined a preference for a system that favors immigrants who are able to support themselves financially.

“I believe that real and positive immigration reform is possible, as long as we focus on the following goals: to improve jobs and wages for Americans, to strengthen our nation’s security, and to restore respect for our laws,” Trump said.”

Here’s the complete Post article:

https://www.washingtonpost.com/powerpost/trump-prepares-to-address-a-divided-audience-the-republican-congress/2017/02/28/183138ce-fced-11e6-8ebe-6e0dbe4f2bca_story.html?hpid=hp_rhp-top-table-main_trumpcongress-desktop%3Ahomepage%2Fstory&utm_term=.cfbf50575bef

PWS

02/28/17

USA TODAY: Former Bush, Obama DHS Execs Say Expanded Expedited Removal Could Be Legally Problematic

http://www.usatoday.com/story/news/nation/2017/02/24/president-trumps-expedited-removal-plan-may-be-illegal/98276078/

Alan Gomez reports:

“That expansion threatens the constitutional rights of undocumented immigrants who may get mistakenly deported, warned John Sandweg, who headed Immigration and Customs Enforcement (ICE) under President Obama.

“The Supreme Court has consistently held that even undocumented immigrants are entitled to due process,” he said.

Sandweg added that expedited removals have been a valuable tool for immigration agents working near the border when they are dealing with clear-cut cases of illegal entry.

Julie Myers Wood, who headed ICE under President George W. Bush, agreed. She said her team considered expanding expedited removals, but decided against it because of legal concerns. She said other aspects of Trump’s tougher immigration enforcement plan also may run afoul of the law.

“Many of these authorities have never been used that way,” Wood said. “The administration is really testing the parameters of what’s acceptable. There is some litigation risk there.”

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Stay tuned.

PWS

02/27/17

NYT: Is The Trump Administration Creating A “New Underground” In America?

https://www.nytimes.com/2017/02/23/world/trump-migrants-deportation.html?mwrsm=Email&_r=0&mtrref=undefined

MAX FISHER and AMANDA TAUB report:

“New deportation rules proposed by the Trump administration risk creating an American underclass with parallels to others around the world: slum residents in India, guest workers in oil-rich Persian Gulf states and internal migrant workers in China.

Those groups provide a cautionary tale for what could happen if the 11 million undocumented immigrants in the United States, as well as their family members, are forced deep into the shadows.

Stuck in a gray zone outside the legal system, they are vulnerable to exploitation, including wage theft and sex trafficking. Because they are denied formal protections or services, informal alternatives take their place — creating an ideal space for corruption, gangs and other forms of criminality.

The result is often the precise opposite of what the administration is seeking: not a cohesive society but a fragmented one, not less crime but more, and, rather than ending undocumented immigration, deepening the secrecy that makes it difficult to manage.”

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Read the full article at the link.

PWS

02/26/17

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-minor-technical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f918-11e6-bf01-d47f8cf9b643_story.html?utm_term=.e2b487b295a7

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/23/white-house-gives-plenty-of-ammunition-to-travel-bans-opponents/?utm_term=.9442c17ff14b

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

http://www.cnn.com/2017/02/23/politics/white-house-effort-to-justify-travel-ban-causes-growing-concern-for-some-intel-officials/index.html

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]

********************************

I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.

PWS

02/23/17

WSJ: Trump, Kelly, Tillerson Continue On Different Pages Re Immigration Enforcement Program — Mexico Remains Skeptical!

https://www.wsj.com/articles/u-s-officials-on-tough-trip-in-mexico-trump-says-1487871849

FELICIA SCHWARTZ, JOSÉ DE CÓRDOBA and ROBBIE WHELAN write in the WSJ:

“MEXICO CITY—Top Trump administration officials tried Thursday to soften the message on expanded U.S. immigration-enforcement efforts during talks here, but Mexican officials signaled little progress had been made in bridging differences that threaten to further fray ties between the two countries.

Secretary of State Rex Tillerson and Homeland Security Secretary John Kelly faced a skeptical Mexican government as they sought to explain Washington’s decision to step up the enforcement of immigration laws, outlining policies to enlist local authorities in the U.S. to jail and deport more people and to send detainees back to Mexico—even if they aren’t Mexican.
Meanwhile in Washington, President Donald Trump made comments that seemed to sharpen the tone.

“All of a sudden for the first time we’re getting gang members out, we’re getting drug lords out, we’re getting really bad dudes out of this country at a rate that nobody’s ever seen before,” the president said during a White House event with manufacturing executives. “And it’s a military operation because they’re allowed to come into our country.”
“We’re going to have a good relationship with Mexico I hope,” Mr. Trump said. “And if we don’t, we don’t.”

In midday meetings in Mexico City, the U.S. cabinet members delivered two key assurances to their Mexican counterparts: that they wouldn’t institute “mass deportations,” and that the U.S. military wouldn’t take part in rounding up and ejecting illegal migrants.

Gabriela Cuevas, the head of the Mexican Senate’s foreign relations committee, said she was deeply troubled by the apparent discrepancy between what the U.S. envoys said in Mexico City and Mr. Trump’s actions and words.

“I see a different message coming from the White House and from the secretaries visiting here,” she said. “One doesn’t know if Secretary Tillerson and Secretary Kelly are telling the truth or not. It’s a problem of credibility. Did they come to tell lies? Or are they just not coordinating with their boss? Who do you believe?”

Later Thursday, the White House sought to walk back Mr. Trump’s use of the word “military” in reference to the immigration enforcement.

“The president was using that as an adjective. It’s happening with precision and in a manner in which it’s being done very, very clearly,” said Sean Spicer, the White House press secretary, at a news briefing. “The president was clearly describing the manner in which this was being done.”

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Lots of mixed messages here. I don’t see much chance at present that Mexico is going to agree to allow non-Mexican-citizens to wait for their U.S. immigration hearings in Mexico.

PWS

02/23/17

President Trump Might find That Mexico Has More Leverage Than He Anticipated — Beating Up On Your Friends & Neighbors To Score Political Points At Home Is Likely To Backfire!

https://www.washingtonpost.com/opinions/mexico-may-strike-back-heres-how/2017/02/22/5d1e8f56-f949-11e6-bf01-d47f8cf9b643_story.html?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.12282059b

WashPost Editorial:

“PRESIDENT TRUMP has a good idea of the power the United States wields over Mexico, and the pain it may inflict — the construction of a wall Mexico fiercely opposes; taxes that could be slapped on Mexican imports, wreaking havoc on its economy; deportations of undocumented Mexican immigrants living in the United States, who would be thrust back into a country that would struggle to absorb them. Mr. Trump might have a fuzzier idea of the pain Mexico, its people furious and its pride wounded by his taunts and contempt, might inflict on the United States.

Start with those deportations. At least half of America’s 11 million unauthorized immigrants are Mexican, but many have no documents proving their nationality. For the Trump administration to deport them, it would need cooperation from Mexico, which cannot be forced to accept deportees without certifying that they are Mexicans. As former Mexican foreign minister Jorge G. Castañeda has already warned, Mr. Trump can round up hundreds of thousands or millions of migrants, but without Mexico’s cooperation, they could clog U.S. detention centers and immigration courts — at enormous cost and, conceivably, for years.

Consider, too, the effect on America’s southern border if Mexico were to loosen immigration controls on its own southern border — the one over which Central American refugees are already streaming north in near-record numbers. Even with what U.S. officials say are aggressive interdiction efforts by Mexican authorities, the Border Patrol detained more than 220,000 mainly Guatemalans, Hondurans and Salvadorans crossing from Mexico into the United States in the fiscal year ending last fall, exceeding the number of Mexicans apprehended, which has fallen to a 45-year low. If you think the Border Patrol is swamped now, as Homeland Security Secretary John F. Kelly insists, imagine if Mexico, which last year sent home more than 140,000 Central Americans, simply stepped aside.”

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Predictably, other countries take “sovereignty” just as seriously as we do.

PWS

02/22/17

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